When President Trump signed his August 25th executive order setting guidelines under which burning an American flag can be prosecuted, we quickly learned how ignorant his critics are about the constitutional and cultural implications of desecrating this revered national symbol. Indeed, it appears that very few of these people actually read the President’s EO. It does not, as most Democrats and alleged experts insist, violate the 1989 Supreme Court ruling in Texas v. Johnson that flag burning is protected speech under the First Amendment.
The crucial passage on that point reads as follows: “My Administration will act to restore respect and sanctity to the American Flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.” In other words, Trump’s executive order authorizes the Department of Justice and local authorities to take action against any person who violates “applicable, content-neutral laws” while burning or otherwise desecrating the American flag.
And flag burning is almost always accompanied by violations of existing laws. If someone sets a flag — or anything else — ablaze in the street or in a public park, they can be arrested for violating open burning restrictions or even arson. Anyone causing property damage while burning a flag can be prosecuted, particularly if the destruction occurs on private or restricted government property. Finally, if a flag burning is conducted in a manner intended to incite violence or that amounts to “fighting words,” the perpetrator is subject to arrest.
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